An Educational Resource on the Office of State Attorney General
Going beyond the headlines to examine the often overlooked issues and cases that highlight the wide-ranging impact and role of state attorneys general.
Although there seems to be no shortage of pollution in Illinois, there has been a dramatic drop in the number of prosecutions since the inauguration of current Governor Bruce Rauner.
Read MoreWe need to start discussing the contours of an opioid settlement today, and to demand that public health principles be front and center. Without that discussion, and the priorities that emerge from it, we are destined to repeat past mistakes that must not be repeated.
Read MoreCongratulations are in order to NH AG Gordon MacDonald and NH Governor Chris Sununu for creating a Civil Rights Unit in the Office of Attorney General. Pledging not only to enforce existing anti-discrimination laws, the new unit will also work closely with local communities to prevent bias and discrimination. This is exactly the right decision for these increasingly troubled times.
The wage-theft saga continues, as evidenced by these recent actions brought by California Attorney General Xavier Becerra and Massachusetts Attorney General Maura Healey.
In a May 2017 report, the Economic Policy Institute found that in 10 states (California, Florida, Georgia, Illinois, Michigan, New York, North Carolina, Ohio, Pennsylvania, and Texas) 2.4 million workers lose approximately $8 billion annually as a result of receiving an effective hourly rate less than the states' mandated minimum wage. These findings suggest that nationally, employers are pocketing $15 billion in employee wages! This scourge overwhelmingly impacts low-wage industries, where immigrant and other vulnerable, marginalized communities predominate the labor force.
These cases will generally not garner the national spotlight. But they are just as important as the actions that have generated far greater national attention. They have immediate real-life impact on affected communities and send a clear signal that some state attorneys general remain on the labor law enforcement beat.
EPI Report: Employers steal $15 billion a year from workers by paying less than the minimum wage, Economic Policy Institute, May 10, 2017.
California Case: Attorney General Becerra Files Suit Against Janitorial Subcontracting Company for Wage Theft and Violating Tax Laws, Highland Community News, Nov 30, 2017.
Massachusetts Case: Sean Philip Cotter, AG: Cohasset hotel didn’t pay workers enough, The Patriot Ledger, Dec 1, 2017.
Ma. AG Maura Healey is opposing efforts by a small museum in western part of her state from selling off two Norman Rockwell paintings. I post this as a reminder that for all of the national attention to the opioid epidemic, pharmaceutical price fixing, and either suing the Trump administration or filling the enforcement void left by federal retrenchment, attorneys general are still back home doing their in-state jobs. And we are talking Norman Rockwell here!
It is no secret that for two years Ct. Attorney General George Jepsen and his experienced antitrust division have been investigating and litigating against generic drug manufacturers. The case exploded this week with the announcement that 46 other attorneys general officially joined the case and asked a federal court to expand both the number of companies from six to eighteen and the number of drugs from two to fifteen. The potential liability to the generics companies is staggering, and the combined strength of 47 state attorneys general makes this one of the major cases pending in the country today.
Press Release, NYU School of Law, 7 Attorney General Offices Selected to Participate in New State Impact Center’s NYU Law Fellowship Program (Oct. 17, 2017).
Even as the headlines note the opposition of some attorneys general to the President's immigration policies, other divisions within AG offices are mounting other challenges. This case filed by 5 state AGs is a serious challenge to the President's vehicle policies. In July, the National Highway Traffic Safety Administration’s suspended the rollout of the Obama administration's regulation that would penalize automakers for failing to meet certain fuel emission standards.
David Shepardson, States sue Trump administration over delayed fuel-economy fines, Reuters (Sept. 11, 2017).
James Tierney provides a brief description on the role of state attorneys general in challenging or supporting the Deferred Action for Childhood Arrivals policy or DACA.
This audio clip will be updated as developments unfold.
On Tuesday, the citizens of Chicago woke up to discover that their own Attorney General, Lisa Madigan, had sued the City of Chicago and its Police Department and is now asking a federal judge to force the City and other stakeholders to negotiate a consent agreement that would bring about long overdue police reform. Chicago Mayor Rahm Emanuel supports the lawsuit and stood with the Attorney General at her press conference. This odd coupling is the result of U.S. Attorney General Jeff Sessions backing away from an agreement in principle that followed a scathing U.S. DOJ report in January 2017 detailing civil rights violations by the Chicago police. Indeed, the U.S. DOJ initiated its pattern and practice investigation and issued its findings at the urging of General Madigan.
Regarding Tuesday’s lawsuit, General Madigan said, “[a]s the state attorney general, we are essentially stepping into the shoes of the U.S. Department of Justice – shoes that the DOJ has abandoned....”
Without weighing in on the specifics of Chicago police reform, I want to note the importance of Madigan's decision. The Illinois Attorney General is showing that, in the face of actions taken by an administration rolling back reforms initiated by the previous administration, state officials can turn to federal courts to create federal oversight, compel reform and ultimately bring about justice.
The importance of Madigan's decision is therefore not limited to police reform. As has been well chronicled, the Trump administration has walked away from numerous initiatives in criminal justice, environment, labor and, of course, civil rights.
As Madigan's suit makes clear, this administration’s politically motivated actions do not change the facts, nor do they change our federal and state laws and constitutions. State attorneys general have broad jurisdiction in all of these areas, and many are guided by a sense of justice that will not allow facts and injustices brought to light by the Obama administration to simply be ignored.
Most initiatives brought by Democratic attorneys general have been aimed at stopping federal retrenchment. But in the months ahead, many more state attorneys general are likely to follow Madigan's leadership and take their own actions in both state and federal courts. We should all be proud, and somewhat relieved, that our constitutionally guaranteed system of federalism has ensured that the flawed actions of one president and his attorney general cannot stop our state attorneys general in their pursuit of justice.
A bi-partisan group of 67 former Attorneys General of the states and jurisdictions today pointed to the example of one of their colleagues to remind us all of the moral imperative to respond directly to those who amplify the voices of hate. See the statement below issued by the former Attorneys General, and here is the link to former Alabama Attorney General Bill Baxley‘s response to the KKK:
Bill Baxley practices law in Birmingham, Alabama: bbaxley@baxleydillard.com
CONTACT: James Tierney, Lecturer on Law, Harvard Law School:
http://hls.harvard.edu/faculty/directory/10888/Tierney
_______________________________________
STATEMENT BY FORMER STATE ATTORNEYS GENERAL
THERE ARE TIMES IN THE LIFE OF A NATION, OR A PRESIDENT, OR A STATE ATTORNEY GENERAL WHEN ONE IS CALLED UPON TO RESPOND DIRECTLY TO THE VOICE OF HATE.
AS FORMER STATE ATTORNEYS GENERAL - WE TAKE THE LIBERTY OF REMINDING AMERICANS - AS WE REMIND OURSELVES - THAT EVENTS CAN CALL OUT THE WORST IN US -- AND THE BEST.
IN 1971 THE TWENTY-NINE YEAR OLD ATTORNEY GENERAL OF ALABAMA BEGAN HIS QUEST TO BRING TO JUSTICE THE PERPETRATORS OF THE BIRMINGHAM CHURCH BOMBING WHICH KILLED FOUR LITTLE GIRLS. IT WAS A CRIME ROOTED IN HATE AND HIS DETERMINATION TO PROSECUTE THE CASE GAVE RISE TO VOICES OF LEADERS OF HATE. HE FACED POLITICAL FUROR, LACK OF COOPERATION FROM FEDERAL AND STATE GOVERNMENT AGENCIES AND CONSTANT THREATS OF PHYSICAL VIOLENCE AND DEATH. BUT HE PERSISTED. IT TOOK YEARS BUT HE OBTAINED A CONVICTION.
IN 1976 WHEN THE GRAND DRAGON OF THE KU KLUX KLAN WROTE A THREATENING LETTER AND DEMANDED THAT ALABAMA ATTORNEY GENERAL BILL BAXLEY RESPOND DIRECTLY TO HIS LETTER, HE DID.
WE COMMEND HIS RESPONSE (SEE LINK ABOVE) TO THE ATTENTION OF ALL WHO SEEK TO EQUIVOCATE IN TIMES OF MORAL CRISIS.
FORMER ATTORNEYS GENERAL,
Robert Abrams, New York
Ronald Amemiya, Hawaii
Jeff Amestoy, Vermont
Bruce Babbitt, Arizona
Thurbert Baker, Georgia
Paul Bardacke, New Mexico
Steve Beshear, Kentucky
Bruce Botelho, Alaska
Margery Bronster, Hawaii
Charlie Brown, West Virginia
Richard Bryan, Nevada
Charles Burson, Tennessee
Bonnie Campbell, Iowa
Steve Clark, Arkansas
Walter Cohen, Pennsylvania
Robert Cooper, Tennessee
J. Joseph Curran, Jr., Maryland
Fred Cowan, Kentucky
Frankie Sue Del Papa, Nevada
Jerry Diamond, Vermont
Richard Doran, Florida
John Easton, Vermont
Rufus Edmisten, North Carolina
Drew Edmondson, Oklahoma
Tyrone Fahner, Illinois
Lee Fisher, Ohio
Karen Freeman – Wilson, Indiana
Terry Goddard, Arizona
Chris Gorman, Kentucky
Slade Gorton, Washington
Jennifer Granholm, Michigan
Scott Harshbarger, Massachusetts
Peter Harvey, New Jersey
Hubert H . Humphrey III, Minnesota
Drew Ketterer, Maine
Oliver Koppell, New York
Peg Lautenschlager, Wisconsin
Joseph Lieberman, Connecticut
Michael Lilly, Hawaii
Alicia Limtiaco, Guam
Bill Lockyer, California
David Louie, Hawaii
Robert Marks, Hawaii
Brian McKay, Nevada
Jeff Modisett, Indiana
Betty Montgomery, Ohio
Mike Moore. Mississippi
Jim Petro, Ohio
Jeffrey Pine, Rhode Island
Warren Price III, Hawaii
Hector Richard, Puerto Rico
Clarine Nardi Riddle, Connecticut
Dennis Roberts, Rhode Island
Stephen Rosenthal, Virginia
Stephen Sachs, Maryland
James Shannon, Massachusetts
Mark Shurtleff, Utah
William Sorrell, Vermont
Robert Spagnoletti, District of Columbia
Robert Stephan, Kansas
Mary Sue Terry, Virginia
James Tierney, Maine
Anthony F. Troy, Virginia
Jim Guy Tucker, Arkansas
Paul Van Dam, Utah
Bob Wefald, North Dakota
Grant Woods, Arizona
“In recent months, progressive state attorneys general have emerged as some of the nation’s foremost champions of civil rights and of humane, sensible policy in the face of declining protection at the federal level. As income inequality grows and too many American workers struggle to get a fair deal in our economy, the role of state attorneys general in enforcing statutes that protect workers’ economic interests has taken on new importance. ”
This fall, the Harvard Berkman Klein Center will begin an "AG Tech Forum" bringing together thought leaders from both the tech industry and the attorney general community to explore issues such as privacy and artificial intelligence.
“The AGTech Forum provides state attorneys general with opportunities to engage a diverse cohort of those innovators involved in developing new technologies, and tech developers with a chance to understand the how policymakers and enforcers approach their responsibilities. The Berkman Klein Center brings insights from academic and other constituencies to ensure that all sides benefit from dialogue on neutral ground.”
I am proud to be involved in this effort along with my friend Travis Leblanc, formerly with the California Office of Attorney General and Chief of Enforcement at the Federal Communications Commission. More information will be forthcoming in the months ahead.
It is an indictment of the current age that we must pause and applaud a rare moment of bipartisan cooperation around an incredibly important and seemingly uncontroversial issue. But such are the times.
This did not take place in the halls of Congress, of course, but rather among a group 32 state attorneys general, led by Massachusetts AG Maura Healey, a Democrat, and Colorado AG Cynthia Coffman, a Republican.* On May 22, the group sent letters to members of the House and Senate Appropriations Committees declaring their bipartisan opposition to the Trump administration’s proposal to eliminate all federal funding to the Legal Services Corporation (LSC). The corporation is a grant-making organization created by Congress for the purpose of distributing federal appropriations to nonprofit organizations that provide civil legal assistance. This group of state AGs joins the American Bar Association, state judges, over 150 law firms and many other concerned groups in opposing this assault on civil legal services for low-income Americans. This includes the elderly, and low-income military veterans and military families.
It is only fitting that a bipartisan coalition of public officials rallies around this organization. LSC’s conception began under President Lyndon Johnson’s “war on poverty” and culminated in the enactment of a bipartisan bill signed into law by President Richard Nixon in 1974 that created the grant-funding organization. According to the LSC website, in describing the need for the organization, President Nixon wrote:
Here each day the old, the unemployed, the underprivileged, and the largely forgotten people of our Nation may seek help. Perhaps it is an eviction, a marital conflict, repossession of a car, or misunderstanding over a welfare check—each problem may have a legal solution. These are small claims in the Nation’s eye, but they loom large in the hearts and lives of poor Americans.
The need for civil legal services for those living near or below the poverty line, as well as middle-income Americans, has never been greater. According to the ABA’s Commission on the Future of Legal Services 2016 Report, approximately 63 million Americans are eligible for civil legal assistance through an LSC grantee, meaning their salaries were at or below 125% of the federal poverty line. And yet, current congressional appropriations allow LSC and its grantees to serve only a small percentage of those eligible for legal services. In many cases, legal services agencies must turn away individuals in need of legal assistance. The report found that “in some jurisdictions, more than eighty percent of litigants in poverty are unrepresented in matters involving basic life needs, such as evictions, mortgage foreclosures, child custody disputes, child-support proceedings, and debt collection cases.”
ABA President Linda Klein’s testimony before a U.S. Senate Appropriations Subcommittee shed further light on this dire situation. Since 2010, funding for LSC has dropped approximately 18%, while the number of individuals eligible for free civil legal services has increased 25%.
Presidential and congressional defunding threats have long been part of LSC’s history. In 1982, President Reagan recommended that Congress not reauthorize LSC funding. Interestingly, state AGs also rose up to defend LSC, on a bipartisan basis, against the Reagan assault. Although Congress rejected President Reagan’s proposal, it did reduce the budget and impose onerous restrictions on LSC attorneys. Similarly, in the mid-90’s, a Republican controlled Congress implemented another round of cuts to the nonprofit corporation.
Defunding LSC would be devastating to some state legal services organizations. For instance, in 2015, Legal Services of Alabama relied on LSC for 88% of its funding, Dakota Plains Legal Services of South Dakota received 86% of its funding from LSC, and Montana’s Legal Services Association received 43% of its funding from LSC.
As news outlets have noted, this proposal would, in many cases, impact the very residents that supported the President during the election. The South Dakota and Montana Attorneys General, Republicans in states whose electoral votes went to Trump, joined the coalition of state AGs opposing the administration’s proposal.
Aside from the moral dimension of this proposal, studies have shown that civil legal services providers actually have a positive impact on state and local economies. A study commissioned by the Tennessee Bar Association in 2015 entitled, "Economic Impact of Civil Legal Aid Organizations in Tennessee," found that not only did the organizations have positive impacts on the client population, but with every dollar invested in a legal service organization, over $11 was produced “in financial benefits, extending to businesses, local governments and individuals across all social classes.”
The rationale for this latest attack on LSC comes under the guise of placing “more control in the hands of State and local governments, which better understand the needs of their communities.” On this point, the President may be right. So, to the administration and members of Congress, take it from 32 state attorneys general, the chief legal officers of their respective states, when they say, “[a]t a time of constrained state budgetary resources, federal funding plays an increasingly critical role in the provision of these services.” (emphasis added).
The fact that state attorneys general from both parties came together to announce their opposition to this unfortunate proposal, in this age of increased political polarization, should demonstrate to the administration and members of Congress the pressing need for continued and enhanced civil legal services for those who need it the most.
* This post initially misstated the number of state attorneys general in the coalition opposing the defunding of the Legal Services Corporation. It is 32 not 34 and has now been corrected.
In a letter sent last week, 21 state attorneys general and the Office of Consumer Protection of Hawaii urged Secretary of Education Betsy DeVos to immediately reconsider “the Department of Education’s revocation of critical student loan service reforms.” The policy and guidance memoranda withdrawn by the Department addressed industry-wide procedures by student loan servicing companies that were the subject of investigations and enforcement actions by the Illinois and Washington State Attorneys General, among others.
The April 24 letter highlights some of the industry practices that contributed to more than a quarter of borrowers being delinquent or in default on a student loan, according to a report by the Consumer Financial Protection Bureau (CFPB):
“In its 2015 report, the CFPB identified troubling student loan servicer practices – including paperwork processing errors and failure to provide accurate information – that discourage the use of income-driven repayment plans. By reforming service incentives and strengthening consumer protections, the rescinded guidance sought to eliminate the loan servicing failures that keep borrowers from entering affordable repayment plans.”
According to Forbes, 44 million borrowers owe approximately $1.3 trillion in student loans, making it the second-largest type of consumer debt behind mortgages.
Washington Attorney General Bob Ferguson gave a talk last week at Gonzaga Law School where he outlined the step-by-step approach he used in making his decision to challenge President Trump's Executive Order. This brief excerpt provides insight not only into this high profile case, but also into just how it is that attorneys general make litigation decisions. This is a must listen for lawyers and non-lawyers alike.
Deanna Nelson is the Assistant Attorney General in charge (AAGIC) of a two-person regional office in Watertown, N.Y. The office is located close to the 10th Mountain (Light Infantry) Division at Fort Drum. In addition to her numerous duties as the AAGIC of the Watertown office - representing state agencies, overseeing charitable organizations, affirmative litigation and other matters - Deanna has taken it upon herself to fight for young military personnel who are away from home for the first time and all too often fall victim to a bewildering array of sophisticated, private equity funded consumer scams. This fight has led to several nationally recognized settlements on behalf of servicemembers and their families.
The effort to protect military personnel from consumer frauds continues. On March 22, AG Schneiderman, joined by members of the NY AG Consumer Protection Division, announced yet another settlement in what is obviously a nationwide scam. Freedom Stores Inc., a chain of electronics and furniture stores catering to military personnel, agreed to settle claims for illegal debt collection practices against servicemembers in New York. In 2014, the Consumer Financial Protection Bureau, along with North Carolina and Virginia, reached a settlement with Freedom Stores for the same abusive practices.
The fact is that protecting our dedicated servicemembers requires a large-scale, coordinated effort between federal and state law enforcement officials. Let's hope that the CFPB can continue to work with AG's all over the country to protect our military personnel from consumer fraud.
Connecticut Attorney General George Jepsen and his staff are continuing their opposition to federal regulatory roll backs by going to court to stop the Trump Administration from weakening federal vehicle emission standards.
According to a statement released on March 17, by filing a Motion to Intervene in the D.C. Court of Appeals in a pending case originally brought by auto manufacturers to block Obama Administration's emission standards, Connecticut hopes to allow the case to continue when the Trump Administration follows through on its promise to "undo the significant progress made toward safeguarding our clean air."
In the face of a reduced federal presence, Columbia Law School's Sabin Center for Climate Change Law, in partnership with StateAG.org, has produced a valuable legal research tool for those interested in environmental law and policy. The State AG Environmental Action Database includes a variety of environmental lawsuits and other actions involving state attorneys general. Users can search its contents by state, issue or type of action. The database also includes links to relevant documents and resources.
This impressive database has been put together by dedicated Columbia Law School students under the supervision of Jessica Wentz, who serves as Staff Attorney and Associate Research Scholar for the Sabin Center.
I cannot overstate the importance of this effort. It is the only place where this information has been brought together in a coherent, organized fashion. The database will remain a "work in progress" as AG offices provide more cases to be uploaded. Notwithstanding the efforts by some in Washington DC, this database is demonstrable proof that state attorneys general remain vigorous protectors of our environmental heritage.
The Maryland Legislature has finally gotten around to giving that state's outstanding AG - Brian Frosh - the authority that is enjoyed by almost every other AG, e.g. the authority to protect and defend the public interest by exercising his or her own best legal judgement without the approval of the Governor or the Legislature. This initiative finally consigns to the historical dustbin a wrongly decided 1984 decision by the Maryland Supreme Court.
As the Rhode Island Supreme Court said in 2008, "the holder of that high office (state attorney general), as distinguished from the usual advocate, has a special and enduring duty to seek justice." State of Rhode Island v. Lead Industries Association Inc., et al., 951 A.2d 428 (R.I. 2008).
Residents of Maryland can now be assured that their attorney general will now work to "seek justice" for them. And other attorneys general around the country can now fully welcome Maryland into their midst.
StateAG.org offers in-depth analysis of the role of state attorneys general in the American legal system. It was founded by James E. Tierney, former Attorney General of Maine and a Lecturer at Harvard Law School where he also directs the Harvard Attorney General clinic. For thirteen years he was Director of the National State Attorneys General Program at Columbia Law School.
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